093_HB2391eng HB2391 Engrossed LRB093 07037 RLC 09567 b 1 AN ACT in relation to expungement of criminal records. 2 Be it enacted by the People of the State of Illinois, 3 represented in the General Assembly: 4 Section 5. The Criminal Identification Act is amended by 5 changing Section 5 and adding Sections 11, 12, and 13 as 6 follows: 7 (20 ILCS 2630/5) (from Ch. 38, par. 206-5) 8 Sec. 5. Arrest reports; expungement. 9 (a) All policing bodies of this State shall furnish to 10 the Department, daily, in the form and detail the Department 11 requires, fingerprints and descriptions of all persons who 12 are arrested on charges of violating any penal statute of 13 this State for offenses that are classified as felonies and 14 Class A or B misdemeanors and of all minors of the age of 10 15 and over who have been arrested for an offense which would be 16 a felony if committed by an adult, and may forward such 17 fingerprints and descriptions for minors arrested for Class A 18 or B misdemeanors. Moving or nonmoving traffic violations 19 under the Illinois Vehicle Code shall not be reported except 20 for violations of Chapter 4, Section 11-204.1, or Section 21 11-501 of that Code. In addition, conservation offenses, as 22 defined in the Supreme Court Rule 501(c), that are classified 23 as Class B misdemeanors shall not be reported. 24 Whenever an adult or minor prosecuted as an adult, not 25 having previously been convicted of any criminal offense or 26 municipal ordinance violation, charged with a violation of a 27 municipal ordinance or a felony or misdemeanor, is acquitted 28 or released without being convicted, whether the acquittal or 29 release occurred before, on, or after the effective date of 30 this amendatory Act of 1991, the Chief Judge of the circuit 31 wherein the charge was brought, any judge of that circuit HB2391 Engrossed -2- LRB093 07037 RLC 09567 b 1 designated by the Chief Judge, or in counties of less than 2 3,000,000 inhabitants, the presiding trial judge at the 3 defendant's trial may upon verified petition of the defendant 4 order the record of arrest expunged from the official records 5 of the arresting authority and the Department and order that 6 the records of the clerk of the circuit court be sealed until 7 further order of the court upon good cause shown and the name 8 of the defendant obliterated on the official index required 9 to be kept by the circuit court clerk under Section 16 of the 10 Clerks of Courts Act, but the order shall not affect any 11 index issued by the circuit court clerk before the entry of 12 the order. The Department may charge the petitioner a fee 13 equivalent to the cost of processing any order to expunge or 14 seal the records, and the fee shall be deposited into the 15 State Police Services Fund. The records of those arrests, 16 however, that result in a disposition of supervision for any 17 offense shall not be expunged from the records of the 18 arresting authority or the Department nor impounded by the 19 court until 2 years after discharge and dismissal of 20 supervision. Those records that result from a supervision 21 for a violation of Section 3-707, 3-708, 3-710, 5-401.3, or 22 11-503 of the Illinois Vehicle Code or a similar provision of 23 a local ordinance, or for a violation of Section 12-3.2, 24 12-15 or 16A-3 of the Criminal Code of 1961, or probation 25 under Section 10 of the Cannabis Control Act, Section 410 of 26 the Illinois Controlled Substances Act, Section 12-4.3(b)(1) 27 and (2) of the Criminal Code of 1961 (as those provisions 28 existed before their deletion by Public Act 89-313), Section 29 10-102 of the Illinois Alcoholism and Other Drug Dependency 30 Act when the judgment of conviction has been vacated, Section 31 40-10 of the Alcoholism and Other Drug Abuse and Dependency 32 Act when the judgment of conviction has been vacated, or 33 Section 10 of the Steroid Control Act shall not be expunged 34 from the records of the arresting authority nor impounded by HB2391 Engrossed -3- LRB093 07037 RLC 09567 b 1 the court until 5 years after termination of probation or 2 supervision. Those records that result from a supervision 3 for a violation of Section 11-501 of the Illinois Vehicle 4 Code or a similar provision of a local ordinance, shall not 5 be expunged. All records set out above may be ordered by the 6 court to be expunged from the records of the arresting 7 authority and impounded by the court after 5 years, but shall 8 not be expunged by the Department, but shall, on court order 9 be sealed by the Department and may be disseminated by the 10 Department only as required by law or to the arresting 11 authority, the State's Attorney, and the court upon a later 12 arrest for the same or a similar offense or for the purpose 13 of sentencing for any subsequent felony. Upon conviction for 14 any offense, the Department of Corrections shall have access 15 to all sealed records of the Department pertaining to that 16 individual. 17 (a-5) Those records maintained by the Department for 18 persons arrested prior to their 17th birthday shall be 19 expunged as provided in Section 5-915 of the Juvenile Court 20 Act of 1987. 21 (b) Whenever a person has been convicted of a crime or 22 of the violation of a municipal ordinance, in the name of a 23 person whose identity he has stolen or otherwise come into 24 possession of, the aggrieved person from whom the identity 25 was stolen or otherwise obtained without authorization, upon 26 learning of the person having been arrested using his 27 identity, may, upon verified petition to the chief judge of 28 the circuit wherein the arrest was made, have a court order 29 entered nunc pro tunc by the chief judge to correct the 30 arrest record, conviction record, if any, and all official 31 records of the arresting authority, the Department, other 32 criminal justice agencies, the prosecutor, and the trial 33 court concerning such arrest, if any, by removing his name 34 from all such records in connection with the arrest and HB2391 Engrossed -4- LRB093 07037 RLC 09567 b 1 conviction, if any, and by inserting in the records the name 2 of the offender, if known or ascertainable, in lieu of the 3 aggrieved's name. The records of the clerk of the circuit 4 court clerk shall be sealed until further order of the court 5 upon good cause shown and the name of the aggrieved person 6 obliterated on the official index required to be kept by the 7 circuit court clerk under Section 16 of the Clerks of Courts 8 Act, but the order shall not affect any index issued by the 9 circuit court clerk before the entry of the order. Nothing 10 in this Section shall limit the Department of State Police or 11 other criminal justice agencies or prosecutors from listing 12 under an offender's name the false names he or she has used. 13 For purposes of this Section, convictions for moving and 14 nonmoving traffic violations other than convictions for 15 violations of Chapter 4, Section 11-204.1 or Section 11-501 16 of the Illinois Vehicle Code shall not be a bar to expunging 17 the record of arrest and court records for violation of a 18 misdemeanor or municipal ordinance. 19 (c) Whenever a person who has been convicted of an 20 offense is granted a pardon by the Governor which 21 specifically authorizes expungement, he may, upon verified 22 petition to the chief judge of the circuit where the person 23 had been convicted, any judge of the circuit designated by 24 the Chief Judge, or in counties of less than 3,000,000 25 inhabitants, the presiding trial judge at the defendant's 26 trial, may have a court order entered expunging the record of 27 arrest from the official records of the arresting authority 28 and order that the records of the clerk of the circuit court 29 and the Department be sealed until further order of the court 30 upon good cause shown or as otherwise provided herein, and 31 the name of the defendant obliterated from the official index 32 requested to be kept by the circuit court clerk under Section 33 16 of the Clerks of Courts Act in connection with the arrest 34 and conviction for the offense for which he had been pardoned HB2391 Engrossed -5- LRB093 07037 RLC 09567 b 1 but the order shall not affect any index issued by the 2 circuit court clerk before the entry of the order. All 3 records sealed by the Department may be disseminated by the 4 Department only as required by law or to the arresting 5 authority, the State's Attorney, and the court upon a later 6 arrest for the same or similar offense or for the purpose of 7 sentencing for any subsequent felony. Upon conviction for 8 any subsequent offense, the Department of Corrections shall 9 have access to all sealed records of the Department 10 pertaining to that individual. Upon entry of the order of 11 expungement, the clerk of the circuit court shall promptly 12 mail a copy of the order to the person who was pardoned. 13 (c-5) Whenever a person has been convicted of criminal 14 sexual assault, aggravated criminal sexual assault, predatory 15 criminal sexual assault of a child, criminal sexual abuse, or 16 aggravated criminal sexual abuse, the victim of that offense 17 may request that the State's Attorney of the county in which 18 the conviction occurred file a verified petition with the 19 presiding trial judge at the defendant's trial to have a 20 court order entered to seal the records of the clerk of the 21 circuit court in connection with the proceedings of the trial 22 court concerning that offense. However, the records of the 23 arresting authority and the Department of State Police 24 concerning the offense shall not be sealed. The court, upon 25 good cause shown, shall make the records of the clerk of the 26 circuit court in connection with the proceedings of the trial 27 court concerning the offense available for public inspection. 28 (d) Notice of the petition for subsections (a), (b), and 29 (c) shall be served upon the State's Attorney or prosecutor 30 charged with the duty of prosecuting the offense, the 31 Department of State Police, the arresting agency and the 32 chief legal officer of the unit of local government affecting 33 the arrest. Unless the State's Attorney or prosecutor, the 34 Department of State Police, the arresting agency or such HB2391 Engrossed -6- LRB093 07037 RLC 09567 b 1 chief legal officer objects to the petition within 30 days 2 from the date of the notice, the court shall enter an order 3 granting or denying the petition. The clerk of the court 4 shall promptly mail a copy of the order to the person, the 5 arresting agency, the prosecutor, the Department of State 6 Police and such other criminal justice agencies as may be 7 ordered by the judge. 8 (e) Nothing herein shall prevent the Department of State 9 Police from maintaining all records of any person who is 10 admitted to probation upon terms and conditions and who 11 fulfills those terms and conditions pursuant to Section 10 of 12 the Cannabis Control Act, Section 410 of the Illinois 13 Controlled Substances Act, Section 12-4.3 of the Criminal 14 Code of 1961, Section 10-102 of the Illinois Alcoholism and 15 Other Drug Dependency Act, Section 40-10 of the Alcoholism 16 and Other Drug Abuse and Dependency Act, or Section 10 of the 17 Steroid Control Act. 18 (f) No court order issued pursuant to the expungement 19 provisions of this Section shall become final for purposes of 20 appeal until 30 days after notice is received by the 21 Department. Any court order contrary to the provisions of 22 this Section is void. 23 (g) Except as otherwise provided in subsection (c-5) of 24 this Section, the court shall not order the sealing or 25 expungement of the arrest records and records of the circuit 26 court clerk of any person granted supervision for or 27 convicted of any sexual offense committed against a minor 28 under 18 years of age. For the purposes of this Section, 29 "sexual offense committed against a minor" includes but is 30 not limited to the offenses of indecent solicitation of a 31 child or criminal sexual abuse when the victim of such 32 offense is under 18 years of age. 33 (h) (1) Notwithstanding any other provision of this Act 34 to the contrary, whenever an adult or minor prosecuted as an HB2391 Engrossed -7- LRB093 07037 RLC 09567 b 1 adult charged with a violation of a municipal ordinance or a 2 misdemeanor is acquitted or released without being convicted, 3 or if the person is convicted but the conviction is reversed, 4 or if the person has been convicted of or placed on 5 supervision for a misdemeanor and has not been convicted of a 6 felony or misdemeanor or placed on supervision for a 7 misdemeanor within 3 years after the acquittal or release or 8 reversal of conviction, the completion of the sentence or 9 completion of the terms and conditions of the supervision, if 10 the acquittal, release, finding of not guilty, or conviction 11 occurred on or after the effective date of this amendatory 12 Act of the 93rd General Assembly, the Chief Judge of the 13 circuit in which the charge was brought, any judge of that 14 circuit designated by the Chief Judge, or, in counties of 15 less than 3,000,000 inhabitants, the presiding trial judge at 16 the defendant's trial shall order the official records of the 17 arresting authority, the Department, and the clerk of the 18 circuit court sealed 3 years after the dismissal of the 19 charge, the finding of not guilty, the reversal of 20 conviction, or the completion of the sentence or terms and 21 conditions of the supervision, except those records are 22 subject to inspection and use by the court for the purposes 23 of subsequent sentencing for misdemeanor and felony 24 violations and inspection and use by law enforcement agencies 25 and State's Attorneys or other prosecutors in carrying out 26 the duties of their offices. This subsection (h) does not 27 apply to persons convicted of or placed on supervision for: 28 (1) a violation of Section 11-501 of the Illinois Vehicle 29 Code or a similar provision of a local ordinance; (2) a 30 misdemeanor violation of Article 11 of the Criminal Code of 31 1961 or a similar provision of a local ordinance; (3) a 32 misdemeanor violation of Section 12-15 or 12-30 of the 33 Criminal Code of 1961 or a similar provision of a local 34 ordinance; or (4) a misdemeanor violation that is a crime of HB2391 Engrossed -8- LRB093 07037 RLC 09567 b 1 violence as defined in Section 2 of the Crime Victims 2 Compensation Act or a similar provision of a local ordinance. 3 (2) The person whose records are to be sealed shall 4 provide the clerk of the court with a current address and 5 shall promptly notify the clerk of the court of any change of 6 address. Notice that the person's records are to be sealed 7 shall be served upon the State's Attorney or prosecutor 8 charged with the duty of prosecuting the offense, the 9 Department of State Police, the arresting agency and the 10 chief legal officer of the unit of local government effecting 11 the arrest within 2 years and 6 months after the dismissal of 12 the charge, the finding of not guilty, the reversal of 13 conviction, or the completion of the sentence or the terms 14 and conditions of the supervision. Unless the State's 15 Attorney or prosecutor, the Department of State Police, the 16 arresting agency or such chief legal officer objects to 17 sealing of the records within 90 days of notice the court 18 shall enter an order sealing the defendant's records 3 years 19 after the dismissal of the charge, the finding of not guilty, 20 the reversal of conviction, or the completion of the sentence 21 or the terms and conditions of the supervision. The clerk of 22 the court shall promptly mail a copy of the order to the 23 person, the arresting agency, the prosecutor, the Department 24 of State Police and such other criminal justice agencies as 25 may be ordered by the judge. If an objection is filed, the 26 court shall set a date for hearing. At the hearing the court 27 shall hear evidence on whether the sealing of the records 28 should or should not be granted. 29 (3) The person whose records are sealed under the 30 provisions of this Act shall pay a fee equivalent to the cost 31 associated with the sealing or expungement of records. The 32 fee shall be paid to the clerk of the court who shall forward 33 it to the Department at the time the court order to seal or 34 expunge the defendant's record is forwarded to the Department HB2391 Engrossed -9- LRB093 07037 RLC 09567 b 1 for processing. The fee shall be deposited into the State 2 Police Services Fund. 3 (4) Whenever sealing of records is required under this 4 subsection (h), the notification of the sealing must be given 5 by the circuit court where the arrest occurred to the 6 Department in a form and manner prescribed by the Department. 7 (5) An adult or a minor prosecuted as an adult who was 8 charged with a violation of a municipal ordinance or a 9 misdemeanor who was acquitted, released without being 10 convicted, convicted and the conviction was reversed, 11 convicted of a misdemeanor or placed on supervision for a 12 misdemeanor before the date of this amendatory Act of the 13 93rd General Assembly and was not convicted of a felony or 14 misdemeanor or placed on supervision for a misdemeanor for 3 15 years after the acquittal or release or reversal of 16 conviction, the completion of the sentence or completion of 17 the terms and conditions of the supervision may petition the 18 Chief Judge of the circuit in which the charge was brought, 19 any judge of that circuit in which the charge was brought, 20 any judge of the circuit designated by the Chief Judge, or, 21 in counties of less than 3,000,000 inhabitants, the presiding 22 trial judge at that defendant's trial, to seal the official 23 records of the arresting authority, the Department, and the 24 clerk of the court, except those records are subject to 25 inspection and use by the court for the purposes of 26 subsequent sentencing for misdemeanor and felony violations 27 and inspection and use by law enforcement agencies, the 28 Department of Corrections, and State's Attorneys and other 29 prosecutors in carrying out the duties of their offices. This 30 subsection (h) does not apply to persons convicted of or 31 placed on supervision for: (1) a violation of Section 11-501 32 of the Illinois Vehicle Code or a similar provision of a 33 local ordinance; (2) a misdemeanor violation of Article 11 of 34 the Criminal Code of 1961 or a similar provision of a local HB2391 Engrossed -10- LRB093 07037 RLC 09567 b 1 ordinance; (3) a misdemeanor violation of Section 12-5 or 2 12-30 of the Criminal Code of 1961 or a similar provision of 3 a local ordinance; or (4) a misdemeanor violation that is a 4 crime of violence as defined in Section 2 of the Crime 5 Victims Compensation Act or a similar provision of a local 6 ordinance. The State's Attorney or prosecutor charged with 7 the duty of prosecuting the offense, the Department of State 8 Police, the arresting agency and the chief legal officer of 9 the unit of local government effecting the arrest shall be 10 served with a copy of the verified petition and shall have 90 11 days to object. If an objection is filed, the court shall set 12 a date for hearing. At the hearing the court shall hear 13 evidence on whether the sealing of the records should or 14 should not be granted. The person whose records are sealed 15 under the provisions of this Act shall pay a fee equivalent 16 to the cost associated with the sealing of records. The fee 17 shall be paid to the clerk of the court who shall forward it 18 to the Department at the time the court order to seal or 19 expunge the defendant's record is forwarded to the Department 20 for processing. The fee shall be deposited into the State 21 Police Services Fund. 22 (Source: P.A. 91-295, eff. 1-1-00; 91-357, eff. 7-29-99; 23 92-651, eff. 7-11-02.) 24 (20 ILCS 2630/11 new) 25 Sec. 11. Legal assistance and education. The State 26 Appellate Defender shall establish, maintain, and carry out a 27 sealing and expungement program to provide information to 28 persons eligible to have their arrest or criminal history 29 records expunged or sealed. 30 (20 ILCS 2630/12 new) 31 Sec 12. Entry of order; effect of expungement or 32 sealing. HB2391 Engrossed -11- LRB093 07037 RLC 09567 b 1 (a) An expunged or sealed record may not be considered 2 by any private or public entity in employment matters, 3 certification, licensing, revocation of certification or 4 licensure, or registration. Applications for employment must 5 contain specific language which states that the applicant is 6 not obligated to disclose sealed or expunged records of 7 conviction or arrest. Employers may not ask if an applicant 8 has had records expunged or sealed. 9 (b) A person whose records have been sealed or expunged 10 is not entitled to remission of any fines, costs, or other 11 money paid as a consequence of the sealing or expungement. 12 This amendatory Act of the 93rd General Assembly does not 13 affect the right of the victim of a crime to prosecute or 14 defend a civil action for damages. Persons engaged in civil 15 litigation involving criminal records that have been sealed 16 or expunged may petition the court to open the records for 17 the limited purpose of using them in the course of 18 litigation. 19 (20 ILCS 2630/13 new) 20 Sec. 13. Prohibited conduct; misdemeanor; penalty. 21 (a) The Department of State Police shall retain records 22 sealed under subsection (h) of Section 5. The sealed records 23 shall be used and disseminated by the Department only as 24 allowed by law. Upon conviction for any offense, the 25 Department of Corrections shall have access to all sealed 26 records of the Department pertaining to that individual. 27 (b) The sealed records maintained under subsection (a) 28 are exempt from disclosure under the Freedom of Information 29 Act. 30 (c) Except as provided in subsection (a), a person who 31 is a keeper of arrest, conviction, or court records who knows 32 that a record was expunged or sealed under Section 5 and 33 knowingly divulges, uses, or publishes information concerning HB2391 Engrossed -12- LRB093 07037 RLC 09567 b 1 an expunged or sealed record under this Section is guilty of 2 a Class B misdemeanor punishable by imprisonment for not more 3 than 90 days or a fine of not more than $500, or both.